NPR Story

3:37 pm

Tue October 8, 2013

Legal Questions Over Special Ops Raids

Accused al-Qaida leader Anas al-Libi is being questioned in U.S. military custody on a Navy Ship, even as questions rise about the laws under which he was captured and is being held.

The U.S. Army’s Delta Force conducted raids in Somalia and in the Libyan capital, Tripoli, over the weekend, capturing al-Libi, who is suspected of masterminding the 1998 bombings of U.S. embassies in East Africa.

U.S. Secretary of State John Kerry has said al-Libi was a “legal target,” and added that the raids show that terrorists who attack American interests “can run but they can’t hide.”

The Libyan government is condemning the U.S. for what it calls “the kidnapping of a Libyan citizen,” and is insisting that it wants to try al-Libi at home.

As Foreign Policy magazine puts it, so you captured an al-Qaida terrorist and are holding him at sea. Now what? Abu Anas al-Libi, the Libyan citizen captured by the U.S. Army's Delta Force over the weekend, is now reportedly on a U.S. Navy ship and being interrogated by American agents. The U.S. says that al-Libi, a computer expert, is one of the masterminds of the attacks on U.S. embassies in East Africa in 1998 in which over 220 people died.

Secretary of State John Kerry called al-Libi a legal target, but the newly formed and newly American friendly Libyan government is condemning al-Libi's capture, calling it a kidnapping. And they say he is innocent until proven guilty, and they want to try Libyans at home.

So what is the law, American and international, on this seizure. We reached Stephen Vladeck, professor of law at American University and co-editor and chief of the national security law blog Just Security. And we understand, Steve, we've reached you on your way to teach class. So thank you for making time for us.

STEPHEN VLADECK: Oh, thanks for having me.

YOUNG: Yeah. And you write the legal questions start with the operation itself. So what is the legal basis for the U.S. to go into Libya and seize a man off the streets?

VLADECK: Sure. So you know, al-Libi is alleged to be, you know, part of al-Qaida, a senior al-Qaida operative, and as you said, believed to be responsible for the 1998 embassy bombings. And so the authority under U.S. law comes from this 12-year-old statute, the Authorization for the Use of Military Force, the AUMF that Congress passed right after 9/11. And that has been the basis for virtually all of our uses of the force against al-Qaida and its, you know, personnel all over the world. So at least as a matter of domestic law, you know, the AUMF provides a pretty broad authority to go after al-Qaida suspects wherever they may be found.

YOUNG: And so the U.S. believes that under the AUMF they are authorized to use military force against foreign terrorists anywhere? Do other countries assert a similar right?

VLADECK: Well, you know, I mean other countries don't have laws like the AUMF, and I think, you know, we have to merge the practical considerations with the legal ones. So even if other countries thought they had the legal right to capture, you know, terrorism suspects outside of their borders, they may not have the capability or the capacity to do so. So the U.S. is in something of a unique position here.

YOUNG: Well, on the other hand, so you're saying, let's say, maybe a smaller country might not even try to go into the U.S. to seize someone in the U.S., but how would the U.S. recognize that?

VLADECK: Yeah. No. I mean it's a great question, and there's a very real danger here of sort of setting a dangerous precedent. You know, I think the best answer is really one of practicality, not law, which is, you know, what's going to stop Libya from arresting a U.S. citizen who's a terrorism suspect in Libya while they're found in the U.S. isn't an illegal(ph) constraint to the U.S. military. And I think one of the harder questions here is not whether the operation to capture al-Libi was legal under U.S. law, but whether we in the process violated Libya's sovereignty under international law. And I think that's a serious issue that I don't think we know enough yet to be able to conclusively resolve.

YOUNG: Well, let's speculate because people are - when it gets to international law, Deborah Pearlstein, law professor at Yeshiva University, says international law requires timely action in self-defense. And others are saying it's hard to argue that a crime that he allegedly committed 15 years ago fulfills the timely action or the self-defense now.

VLADECK: Yeah. No. That's right. But I think the real question here has to do with Libya's consent. You know, Libya has made noises publicly that this was a kidnapping, that this was without their consent. But it's entirely possibly that quietly and behind the scenes, you know, Libya had actually expressed tacit acquiescence in this operation. And I think, you know, there's a real important catch out here, which is whether or not the operation was legal under international law is an interesting and important question for us to debate. It's not going to actually affect how the U.S. handles al-Libi. He can't turn around and say that the capture was illegal because we violated Libya's sovereignty; only Libya can say that.

YOUNG: Yeah. Well, what about the fact that he's being kept on a ship? We thought the Geneva Conventions required that prisoners of war can be interned only in premises located on land.

VLADECK: You know, it's certainly true. And so I think this is why it's going to be a relatively short period of time that al-Libi is kept onboard a Navy vessel. I think the, you know, the Obama administration has a bit of a sticky wicket here because they've stopped sending any new detainees to Guantanamo. We haven't sent anyone there since 2008. But also, they don't want to bring him into the U.S. because the moment that they bring him into the U.S., that's when the criminal process, the wheels - the rules that would apply would start going into effect.

So we saw this a couple years ago in the case of another terrorism suspect, Ahmed Warsame, where the government held him on board a Navy ship for about six weeks. You know, I don't know that we ever conclusively resolved whether that was legal since Mr. Warsame took a plea bargain ultimately. But I think the Obama administration at least believed it has precedent to hold him at least for a short period of time for purposes of interrogation.

YOUNG: Mr. Warsame was an al-Shabab military commander, that's a, you know, something Americans are becoming aware of again after the attacks in Nairobi. But just to underscore, it's further complicated as you - just to, you know, make it - drive it home, the Obama administration certainly doesn't want to bring anyone to Guantanamo, which President Obama wants to close - has said he wants to close - but also, others are speculating that maybe American officials are looking at the law and saying, well, al-Libi doesn't qualify as a prisoner of a war or any coverage from the Geneva Conventions because al-Qaida is not a party to the Geneva Conventions.

VLADECK: It's true. I mean al-Qaida is not a part of the Geneva Conventions. But we do have this 2006 holding by the U.S. Supreme Court in the Hamdan case that at least the basic humane treatment provisions of the Geneva Conventions, especially what's called Common Article 3, do apply to the conflict with al-Qaida.

So, you know, I think from the Obama administration's perspective, what they're really looking at right now is short-term detention for the purpose of interrogation but then moving al-Libi into the criminal process as quickly and as expeditiously as possible to avoid arguments down the road that his detention on board a Navy ship and his interrogation during that period both were unlawful and indeed may interfere with their ability to try him.

YOUNG: And, by the way, we should note that some, like Republican Senator Lindsey Graham, are arguing that al-Libi should be treated as an enemy combatant and sent to Guantanamo. But, of course, there's a lot of political underpinning there.

VLADECK: Indeed. And I think, you know, Senator Graham's concern, which he has made often and in lots of cases, has been with the need to allow the government to obtain intelligence, to find out from suspects like Mr. al-Libi, you know, whether they have information about other pending terrorist plots.

I don't think anyone disputes that that's an important interest. I think the problem is that it doesn't get you to Guantanamo since as this case illustrates and as the Warsame case illustrates, the government has the ability to interrogate these detainees and then put them through our ordinary criminal justice system with all the procedural protections that come with such trials.

YOUNG: Right. Stephen Vladeck, professor of law at American University, co-editor-in-chief of the national security law blog Just Security on the legal questions behind the seizure. Stephen, thanks so much.